FEDERAL COURT OF AUSTRALIA INDUSTRIAL LAW - UNLAWFUL TERMINATION - Whether valid reason for termination - Whether applicant was given an opportunity to respond to allegations. Workplace Relations Act 1996, ss 170DE(1), 170DC RABEL v WHITEHORSE CITY COUNCIL No VI 1707 of 1996 JUDGE: NORTH J PLACE: MELBOURNE DATE: 16 JUNE 1998 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 1707R of 1996 BETWEEN ANDREW FRANK RABEL Applicant AND: WHITEHORSE CITY COUNCIL Respondent JUDGE(S): NORTH J DATE OF ORDER: 16 JUNE 1998 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application is dismissed. 2. The question of costs is reserved to a date to be fixed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 1707R of 1996 BETWEEN ANDREW FRANK RABEL Applicant AND: WHITEHORSE CITY COUNCIL Respondent JUDGE(S): NORTH J DATE: 16 JUNE 1998 PLACE: MELBOURNE REASONS FOR JUDGMENT Mr Rabel, the applicant, was employed by Whitehorse City Council (the Council), the respondent, as a home carer from 6 December 1995 until 20 May 1996, when he was dismissed. On 21 May 1996 he filed an application under s 170EA of the Workplace Relations Act 1996 (the Act). On 26 March 1997, Judicial Registrar Parkinson held that the termination did not contravene s 170DE and s 170DC of the Act and dismissed the application. Mr Rabel then applied, under s 377(1) of the Act, for a review of the exercise of power by the Judicial Registrar. Section 170DE(1) provides: "An employer must not terminate an employee's employment unless there is a valid reason, or valid reasons, connected with the employee's capacity or conduct or based on the operational requirements of the undertaking, establishment or service." Section 170DC provides: "An employer must not terminate an employee's employment for reasons related to the employee's conduct or performance unless: (a) the employee has been given the opportunity to defend himself or herself against the allegations made; or (b) the employer could not reasonably be expected to give the employee that opportunity." The central issues in this case are whether the Council had a valid reason or reasons connected with Mr Rabel's conduct to terminate his employment and whether Mr Rabel was given the opportunity to defend himself against the allegations made. The evidence which is relevant to these issues falls within a fairly narrow compass. However, the issues canvassed during the lengthy hearing of the case travelled much wider. This was in part due to the fact that Mr Rabel represented himself in the proceedings. For the purpose of these reasons, I will restrict myself to a consideration of the centrally relevant facts. I turn to those facts now. Some basic features of the home care service The Council offered home care services to the elderly, the frail and the disabled within the municipality. The service operated from Monday to Friday and provided clients with general domestic assistance, such as vacuuming, dusting, cleaning bathrooms, sweeping porches, assisting with banking and shopping, and other household duties. By way of training, home carers received a four-hour induction course, followed by two days with a "buddy", that is to say, an experienced home carer with whom the new carer worked in order to gain experience. Mr Rabel attended the induction course on 6 December 1995. It was conducted by Ms Annette Brunton who was, at the time, directly in charge of all the home service carers. At the induction programme, Ms Brunton addressed important aspects of the home carer's role and went through and explained two documents governing the functions and responsibilities of home carers, namely, the Home Support Services Code of Practice and the Home Carer Handbook. Mr Rabel received a copy of both these documents. A number of matters addressed at the induction course are of particular relevance to this case. I will refer to them in turn. Timesheets Each home carer was provided with a printed roster sheet each week. This document doubled as a timesheet. The document was divided into a number of columns. There was a column for the date on which the service was to be provided, a column for the code applicable to the particular client, a column for the client's name and address and the particular duties to be performed for that client, a column for the start time for the service, a column for the finish time for the service, and a column for the total time of the service. The next two columns were left blank. One was for the number of kilometres travelled between one client and the next, and the final column was for the signature of the client, to indicate that the service had been performed by the carer as recorded in the roster. On the last page of the roster there was a space for the signature of the carer to verify that the hours claimed had been worked. After the carer performed the services specified in the roster, they returned the document to the Council. If a carer worked at times or for hours that were different from the details stated on the printed form, the alterations had to be recorded and signed by the carer and client. The document was then used as the record both to charge the client for the services provided and to pay the carer. The Council engaged over 100 part time carers, each of whom worked about 20 hours per week, and serviced a total of about 3,500 clients. Accuracy in the completion of the timesheets was therefore essential to the administration of the home care service provided by the Council. It is therefore not surprising that the Home Care Handbook provided: "TIMESHEETS It is essential that timesheets are completed accurately, as it is from this information that clients' accounts are compiled." In response to a question from Mr Katz, who appeared on behalf of the Council, Ms Brunton described the importance of the accurate completion of the timesheets as follows: "KATZ: .... Why is it important that the carer complete the time sheets accurately?--- BRUNTON: The time sheets are a legal document in recognising that the carer is paid from that time sheet in that it identifies the hours worked. But it is also the factor that precipitates the billing of the clients, so it is has [sic] a dual role in that the hours that are noted per client, the clients are billed from the time sheet." Changing rosters At the induction course, Ms Brunton told the carers that communication with the office is a paramount responsibility in relation to changing or deviating from the rostered times. This is reflected in the handbook, which provides: "Carers' Responsibility No change of rostered times is possible unless discussed with the appropriate Team Leader. If you are running late, phone the Team Leader so that the client may be notified." There are a number of reasons for this requirement. Often the clients received other assistance from the Council, or from the District Nursing Service or like services, and changes in home care services had to be arranged in a way which would not clash with those other services. Further, many of the clients depended on the regularity and forewarning of nominated appointment times. This was partly an emotional factor. Some clients had heart conditions or anxiety problems. The condition of many clients made it important that they were not troubled by stress and worry arising from unnecessary changes. Further, when changes were necessary, the professional judgment of the Council was that these changes were best coordinated by the Area Coordinator. That way, the sensitivity of the clients was addressed by at least ensuring that the arrangement was made by the same process each time. The level of services which they needed were assessed by community service worker. Any changes in the services provided had to be approved by such workers, who monitored the overall needs of the clients. The administrative system established by the Council was designed to protect both the Council and the carers by requiring that all communication concerning roster changes be made between the Council and the client, and not the carer and the client. The carer was prohibited from being accused of imposing roster changes on vulnerable clients, and the clients were protected from any pressure from the carers who may, for instance, seek to persuade clients to allow changes or the convenience of the carer alone. In other words, the planning of appointments, which could induce some stress into the lives of frail elderly or disabled clients, was placed in the hands of an independent administrator. Finally, the Council had to know where each carer was during working time for the purposes of WorkCover insurance coverage. No contact outside rostered hours The handbook explained that the home carers had to conduct themselves in a professional way. It provided that: "Home Carers are expected to be aware of the boundary between themselves and the client. Many difficulties can arise when Home Carers become over involved with clients". One aspect of this professionalism was that home carers should not have contact with the client outside rostered hours. This would encroach upon the privacy of the client. Another aspect concerns soliciting personal references from clients. Ms Brunton said that it would not be proper conduct for a home carer to solicit personal references from clients. Rather, the home carer should seek such references through the Council. Ms Brunton described the situation thus: "It's not a friendship relationship, it's a therapeutic relationship in that we're there for the purpose of providing a service to them and we do not have the right to infringe on their privacy beyond that service provision and nor do they have the right to encroach on ours." Emergency procedure In undertaking the home care service, the Council takes responsibility for monitoring the safety of clients. It has a procedure and contacts to be invoked if the client does not answer the door at the time of the rostered home care visit. In order to fulfil this function, it is necessary that home carers contact the Council immediately if a client does not respond at the time of the rostered service. Ms Brunton described the role as follows: "We have an extreme monitoring role in our services, and that is to basically undertake monitoring of the clients, so if we've arranged to be at client's home and they're not there or we can't get in when we knock, then we would always have to implement our emergency procedures which is to ring back to the office, the office would then contact the next-of-kin and say: we expected the client to be home, they're not home today - and they might say to us: they haven't gone to hospital, they're not aware that they - you know, why they wouldn't be home, and in some cases we need to call the Community Policing Squad to break in, because people fall and are not able to get to the door; sometimes people have died. And so we have quite a strict routine that we implement when someone isn't at home. Sometimes they've just gone shopping and forgotten that we've been going to come, but we have to - every time someone isn't home when we expect them to be there, we follow that routine." Ms Brunton described the instruction to home carers to contact Council as a "strict directive". The handbook provides: "CLIENT NOT HOME ON ARRIVAL If a client does not answer the front or back door, check with neighbours, leave a 'Phone the Office' card, and contact the Team Leader immediately." BACKGROUND Initially, Mr Rabel was employed as a casual home carer, from 6 December 1995 for a three month probationary period. From 4 March 1996, he was employed as a permanent part time home carer for 40 hours per fortnight. Until about mid March 1996, the home carers reported directly to Ms Brunton. Then Ms Brunton obtained the assistance of four Area Coordinators to run the home care service. The home carers were divided into four groups. They reported to one of the four Area Coordinators. The Area Coordinators reported to Ms Brunton. The Area Coordinator to whom Mr Rabel reported was Mrs Pam Hore. Against this background, I turn to the events relevant to Mr Rabel's dismissal. 2 April 1996 - Mrs Barnett Mr Rabel went to Mrs Barnett's house to provide home care on 2 April 1996 as rostered, but Mrs Barnett did not answer the door. He waited for half an hour and then left. He did not notify the Council that she had not responded. Mr Rabel said in evidence that "I agree I should have rung", "It was my fault", "It was just one of those things that just happened", ".... this was a one off situation". 3 April 1996 - Mrs Godkin, Mrs Tyrrell and Mrs Haddy The printed roster required Mr Rabel to provide home care to Mrs Godkin between 9‑11 am, to Mrs Tyrrell between 11.10-12.40 am, and to Mrs Haddy between 12.50- 2.50 pm on 3 April 1996. When Mr Rabel attended Mrs Godkins' house just before 9 am, he found that the appointment had been cancelled the day before. On the next day, Mr Rabel made a claim in writing for the two hours he was rostered to spend at Mrs Godkins'. In that written claim he explained that, after finding that Mrs Godkin did not want the home care as rostered, he proceeded directly to Mrs Tyrrell and then went on to Mrs Haddy. He said that Mrs Haddy required him to finish by 12.30 pm and he did so. Mrs Hore had this information when she had to determine the payment due to Mr Rabel. Mr Rabel did not record on the roster sheet the actual times worked but, on the contrary, he procured Mrs Tyrrell and Mrs Haddy to sign the roster in its original form. This meant that Mrs Hore had to do some reconstruction. She allowed for payment for half an hour for attendance at Mrs Godkins', which reflected the allowance permitted where a client cancelled the service. This left three hours of time worked until 12.30 pm, which was the time which Mr Rabel recorded as the time of completion of the work. Mrs Hore knew that the roster provided for three hours and 40 minutes work at Mrs Tyrrell's and Mrs Haddy's. She therefore concluded that Mr Rabel had shortened the visits to Mrs Tyrrell or Mrs Haddy, or both. In these proceedings, Mr Rabel strenuously contested the conclusion that he had shortened the visits to Mrs Tyrrell and Mrs Haddy. He explained that he had arrived at Mrs Godkins' just before 9 am, found that she did not require the service, immediately proceeded to Mrs Tyrrell, spent approximately an hour and a half there, and proceeded to Mrs Haddy at about 10.30 am, in time to complete two hours work before finishing at 12.30 pm. Mr Rabel admits that he did not contact the Council to change the rostered times nor did he advise that the visit times did not correspond with the roster. Further, the timesheet submitted for pay and billing purposes did not record the actual times worked. Both of these omissions were breaches of the required practices of the Council. In the light of Mr Rabel's failure to comply with those practices, it is not surprising that Mrs Hore initially came to the conclusion that Mr Rabel did not spend the required time with Mrs Tyrrell or Mrs Haddy. Mr Rabel had no explanation for failing to complete the timesheet accurately. This was despite the fact that Mr Rabel made other alterations to the timesheet, including adding a claim for additional hours for the day before. This addition involved adding figures to the start and finish times column immediately above the entry for Mrs Godkin on 3 April 1996. Even if there was an innocent explanation for Mr Rabel's failure to alter the entries for Mrs Tyrrell and Mrs Haddy for 3 April 1996, it was hardly reasonable for Mr Rabel to criticise Mrs Hore, as he did in this case, for having an initial reaction that the failure to complete the timesheet accurately in respect of Mrs Tyrrell and Mrs Haddy may have involved an attempt to claim for more hours than Mr Rabel actually worked. 4 April 1996 - Mr Fox, Mrs Daly, Mr Chatton and Mrs Zonnios On 4 April 1996, Mr Rabel was rostered to provide home care to Mr Fox between 9‑11 am, to Mrs Daly between 11.15 am-12.45 pm and to Mr Chatton between 1-3 pm. In fact, Mr Rabel arrived at Mr Fox's at 8.30 am, without any prior warning. He said that he worked there until 10 am, that is to say, for one and a half hours. This is half an hour less than the rostered time of two hours. Mrs Hore was advised by Mr Fox that Mr Rabel worked for about one hour only. Mr Rabel then visited Mr Chatton from 10.10‑11.15 am, that is to say, one hour and five minutes. Again, this was shorter than the rostered time of two hours. Mr Rabel did not attend Mrs Daly. The evidence concerning the failure to visit Mrs Daly is confused. However, it is probable that Mr Rabel rang Mrs Daly after completing the visit to Mr Fox, discovered that she was not home and then decided to go directly to Mr Chatton. At 11.25 am Mr Rabel rang Mrs Hore and said he had completed the available work. During this phone call, Mr Rabel probably told Mrs Hore the hours actually spent at Mr Fox's and Mr Chatton's. Mrs Hore then asked him to go to Mrs Zonnios' house and provide three hours home care for her. Mr Rabel then went to Mrs Zonnios's house but provided two hours, and not three hours, home care. He explained that Mrs Zonnios's daughter told him that two hours work was sufficient. The timesheet which Mr Rabel submitted showed the original rostered times for Mr Fox and Mr Chatton unaltered to reflect the shortened visits. Again, this was despite the fact that the form included substantial additions in Mr Rabel's handwriting for claims for travel undertaken and other alterations to the roster. Mr Rabel asserted that the failure to complete the timesheet accurately was of little significance because he had told Mrs Hore of the shortened visits by phone. In my view, Mr Rabel's response was unsatisfactory. Mentioning a change to the roster on the morning after it had occurred was no substitute for completing the timesheet accurately. In any event, it is significant that Mr Rabel turned up early for the appointments with Mr Fox and Mr Chatton, without prior warning to the clients and without any arrangement with the Council. Not only did he turn up unannounced, but he provided shorter visits than prescribed without consultation with the Council. In the case of Mrs Zonnios, Mr Rabel did not advise the Council at the time that the visit was shortened, although his pay claim was limited to the two hours actually spent at Mrs Zonnios's house. 10 April 1996 - Mrs Springett Mr Rabel was rostered to provide home care to Mrs Springett between 2.20-4 pm on 10 April 1996. He did not attend for that visit. Instead, he took his son to the pictures. He said he overlooked the entry on the roster. He rang Mrs Springett that evening and apologised for his absence. On 11 April 1996, Mrs Hore spoke to Mr Rabel and explained that it was inappropriate to contact clients outside rostered hours and he should not have rung Mrs Springett to apologise to her. This was a matter for communication between the Council and the client as explained in the induction course. 24, 25, 26 April 1996 24 April 1996 - Mr Lennon The printed roster required Mr Rabel to provide home care to Mr Lennon on Friday, 26 April 1996, for two hours between 11.10 am-1.10 pm. The claim for payment which Mr Rabel submitted was for attendance in accordance with the roster. In fact, Mr Rabel provided home care to Mr Lennon on Wednesday, 24 April 1996, commencing at around 2 pm. This fact became known to Mrs Hore only because a home assessment worker was attending Mr Lennon when Mr Rabel arrived, and the home assessment worker mentioned Mr Rabel's visit to Mrs Hore. When Mrs Hore learned that Mr Rabel had started at Mr Lennon's at around 2 pm, she was concerned that Mr Rabel had shortened the visits to the clients rostered on 24 April 1996. The rostered clients for 24 April 1996 were: Khan 9-10 am, Cameron 10.10‑11.40 am, and Gray 12.20-2.20 pm. At the time, Mr Rabel did not advise Mrs Hore that he had changed the rostered times. The printed roster provided for a 2.20 pm finish. Mrs Hore by chance discovered that Mr Rabel started at Mr Lennon's at 2 pm. The timesheet submitted a few days later was unaltered, thereby indicating that Mr Rabel worked according to the roster until 2.20 pm at Mrs Gray's. It was therefore reasonable for Mrs Hore to later raise the issue whether Mr Rabel had shortened the rostered visits. In his evidence to the Court, Mr Rabel asserted that he had not shortened the rostered visits. He said that he finished Cameron at 11.40 am and went directly to Mrs Gray, commencing there at about 11.50 am. He spent two hours at Mrs Gray's house, until about 1.50 pm, thus enabling him to start at Mr Lennon's at about 2 pm. Accepting this evidence means that Mr Rabel attended Mr Lennon two days early, without advising the Council or Mr Lennon of the changed time. Mr Rabel then submitted a timesheet which did not record the actual time of the service provided to Mr Lennon. Further, Mr Rabel arrived early at Mrs Gray's without advising the Council or Mrs Gray and submitted a timesheet which did not record the actual time of the service provided to Mrs Gray. 25 April 1996 - Mrs Atkinson The Council does not provide home care service on Anzac Day. Mr Rabel was rostered to provide home care to Mrs Atkinson from 9-11 am on Friday, 26 April 1996. On Wednesday, 24 April 1996, Mr Rabel rang Mrs Atkinson and rescheduled the visit for 10.30-12.30 pm on 25 April 1996, which was Anzac Day. Mr Rabel did not advise the Council to change the roster and submitted a timesheet as if there had been no change. Mrs Hore only discovered the change when she rang Mrs Atkinson by chance on the morning of Friday, 26 April, to make contact with Mr Rabel to rearrange an appointment which Mr Rabel had later that day. During this phone call Mrs Atkinson mentioned that Mr Rabel had provided home care on 25 April 1996 instead of the following day, 26 April 1996. 26 April 1996 - Mrs Way A handwritten amendment to the printed roster required Mr Rabel to provide home care to Mrs Way on 26 April 1996, between 1.20-3.20 pm. On 24 April 1996, Mrs Way cancelled this appointment, and Mrs Hore attempted to contact Mr Rabel to tell him of the cancellation. Mrs Hore said she left messages on Mr Rabel's answering machine but received no response. Mr Rabel denied that any message was left. In fact, Mr Rabel attended Mrs Way's house early and provided home care between 9-11 am on Friday, 26 April 1996. Mr Rabel did not advise the Council to change the roster time. He negotiated this directly with Mrs Way. He submitted a claim for payment using the unaltered handwritten timesheet showing the original appointment time. 26 April 1996 - Overview On 26 April 1996, the roster required Mr Rabel to provide home care to Mrs Atkinson between 9-11 am, to Mr Lennon between 11.10 am-1.10 pm, and to Mrs Way between 1.20-3.20 pm. Mr Rabel did not adhere to this roster at all. He changed the appointment for Mr Lennon to 24 April 1996, the appointment for Mrs Atkinson to 25 April 1996, and the appointment for Mrs Way to 9-11 am on 26 April 1996. Mr Rabel said that he made these changes because the roster had overloaded him on Friday, 26 April 1996, to such an extent that he could not collect his son from school at 3.30 pm. However, upon questioning, it became clear that there was sufficient time between the scheduled last appointment on 26 April 1996 at 3.20 pm for Mr Rabel to finish work at Mrs Way's in Nunawading and collect his son from Blackburn. But, more importantly, even if the roster for Friday, 26 April 1996, was inconvenient to Mr Rabel, he was required to communicate with the Council to have it altered, and not deal directly with the clients to do so. Further, the timesheets should have recorded times actually worked. 26 April 1996 - Request to Mr Rabel to attend meeting Mrs Hore left a note in Mr Rabel's pigeonhole on Friday, 26 April 1996, requesting him to meet at 3.30 pm on Monday, 29 April 1996 for a "chat over the home care hours". The meeting finally took place on 2 May 1996. Although some time was spent during the hearing on exploring the circumstances of the change of time, nothing turns on these events in the final analysis. Mr Rabel was well aware that he had recently acted in breach of the Council's rostering requirements. He said that he believed that the meeting was to be concerned with his working on the Anzac Day public holiday. In my view, on all of the evidence, I find that Mr Rabel knew on 26 April 1996, from his own knowledge of the operation of the home care service, that he had breached a number of Council requirements during April. Further, I find that Mrs Hore had attempted to convey her complaints to him by phone and Mr Rabel had avoided making contact, probably in order to avoid addressing the issues. Although Mr Rabel did not disclose the fact to the Council until 8 May 1996, Mr Rabel began obtaining written references from clients in anticipation of the meeting from 27 April 1996. By 8 May he had obtained 27 such references. This effort signifies that Mr Rabel expected serious questioning of his conduct even before the Council had outlined its concerns to him. 29 April 1996 - Mrs Way contacts Council Mrs Way rang Mrs Hore on Monday, 29 April 1996, to cancel her reassessment visit and indicated that she was upset because she could not remember the nature of a document she had signed for Mr Rabel. She had signed the document on the previous day, Sunday 28 April 1996, when Mr Rabel arrived at her home at about 10 am. The visit was outside home care hours because home care is provided only on weekdays. Later, on 29 April 1996, Mrs Linda Smart, who was employed by the Council as a community support worker responsible for Mrs Way, rang Mrs Way and found that Mrs Way had remembered that the document she had signed was concerned with Mr Rabel's ability to perform the home care duties on the visit of 26 April 1996. 2 May 1996 - The first meeting On 2 May 1996, Mr Rabel attended a meeting with the Human Resources Manager, Mr Graeme McTaggart, and Mrs Hore. The meeting was tape recorded and the transcript was tendered evidence in this case. Mr McTaggart told Mr Rabel that the Council had concerns about Mr Rabel changing rosters without notice to the Council, turning up early to home care visits, working on Anzac Day when not rostered, the accuracy of timesheets involving possible shortened visits, and difficulties in contacting Mr Rabel and having him return phone calls. Mr Rabel was provided with three documents which had been prepared by Mrs Hore. One document dealt with the events of 24 April concerning Mr Lennon, another dealt with the events of 25 April concerning Mrs Atkinson, and the final document dealt with the incident with Mrs Barnett on 2 April, the incidents concerning Mrs Godkin, Tyrrell and Haddy on 3 April and the incidents concerning Mr Fox, Mrs Daly, Mr Chatton and Mrs Zonnios on 4 April 1996. In each case, the document set out in detail the concerns which the Council then had concerning Mr Rabel's conduct as described earlier in these reasons. The meeting was adjourned to allow Mr Rabel to consider these documents and for the participants to meet again to discuss the issues. The second meeting occurred on 8 May 1996. 6 May 1996 - Mrs Kovesy On 6 May 1996, Mr Rabel rang Mrs Hore and said that he had visited Mrs Kovesy outside the rostered visit time and she told him she wanted to change the time for her next visit. I accept Mrs Hore's evidence that she told Mr Rabel that Mrs Kovesy would have to phone the Council to rearrange her appointment. I also accept that Mrs Hore told Mr Rabel that he should not be visiting clients out of rostered hours, because this was the same sort of problem which was to be discussed in the second meeting. 8 May 1996 - The second meeting Mr McTaggart, Mrs Hore and Mr Rabel attended the second meeting. A tape recording was made of the proceedings at this meeting also. The transcript of the recording was an exhibit in the case. There was a discussion of the documents which had been given to Mr Rabel on 2 May 1996. Mr McTaggart and Mrs Hore reiterated the concerns about changing rosters without advising the Council or the clients beforehand, the failure of Mr Rabel to record the hours actually worked in the timesheets, the difficulty of contacting Mr Rabel, Mr Rabel working on Anzac Day, and the failure to report to the Council immediately when a client did not answer the door at the time of the appointment. These matters were discussed by reference to the particular examples raised in the documents given to Mr Rabel on 2 May 1996. For instance, Mr McTaggart went through the change to the appointment of Mrs Tyrrell on 3 April 1996. Mr Rabel responded that Mrs Tyrrell had agreed to the early start. Mrs Hore then raised the issue that Mr Rabel had claimed for two hours home care provided to Mr Chatton when he had worked only one hour. Mr Rabel accepted that this happened. Mrs Hore then referred to the problem concerning Mrs Barnett. When told that Mrs Barnett did not answer her door because she was in the shower, Mr Rabel replied "Well I wouldn't be spending half an hour in the shower especially when the Council has rung me". Shortly after this exchange, Mr Rabel seemed to accept the Council's concern. He said "Alright. Well .... next time I'll phone you ....". After Mr McTaggart heard Mr Rabel's explanations of these matters, he said "I'm really in a situation where there is no real answer .... to why these things have been going on .... Why do you change the roster?" Then Mrs Hore said that Mr Rabel should not have worked on Anzac Day. He replied that the reason was that the Council had set excessive hours for the Friday after Anzac Day and then the following exchange occurred: "McTAGGART: But if you had a problem with it .... you should have communicated that .... and maybe something could have been done .... RABEL: Yes .... but I wasn't aware of it .... McTAGGART: It just seems sensible .... RABEL: Yes .... but it seemed to me sensible to .... to .... ring the clients .... reschedule with them, with their full consent .... McTAGGART: You've got to deal through to us .... everything has to come back through Pamela and Pamela's group. RABEL: Well, I wasn't aware of that .... HORE: See one client has been quite .... I won't say frightened .... but concerned because she received an evening call .... from a man." Mrs Hore then referred to Mr Rabel's visit to Mrs Way on Sunday, 28 April 1996, to obtain a reference. She said: "She [Mrs Way] could not recall whether she didn't sign her money away .... now she was very distressed at the time she spoke with me because her relatives all live in Tasmania and it happened .... it happened on the day .... and she sort of lost total recall of what she had signed .... during the course of the day she was able to calm down .... but that was a very distressful 24 hours for her because suddenly she thought, what have I signed? Have I signed something which .... you know, I'm going to lose all my money or .... something like that - she was very distressed!" Then Mrs Hore raised similar concerns about the visit to Mrs Kovesy. Mr Rabel said that he attended these clients to obtain statements to use in answer to possible disciplinary proceedings by the Council. He said he understood Mrs Hore's concerns but said "I am not too sure .... whether I can abide by that sort of requirement". The Council made it clear at this meeting that Mr Rabel was not to solicit further references from clients because such conduct had caused some clients distress. In my view, this was a reasonable requirement in all the circumstances. While, in some cases, it would not be reasonable to restrict an employee from obtaining evidence to defend disciplinary proceedings, the Council had to balance its responsibility to its clients against its responsibility towards its employee. The primary concerns about Mr Rabel involved his failure to comply with the administrative procedures of the Council. References from clients could have only a limited relevance to such allegations. Mrs Hore told Mr Rabel at the meeting that the concerns did not relate to the quality of his work but to his conduct as an employee. This factor militated against allowing Mr Rabel to obtain references from clients. The other factor militating against allowing Mr Rabel to seek references from clients was the condition of the clients. Many home care clients were vulnerable by reason of advanced age, frailty, ill health or disability to anxiety, upset and distress from unusual, unplanned and unofficial approaches from home carers. The requirement that Mr Rabel not approach clients for references was reasonable in the circumstances. Mr McTaggart then wrote a list including five items, as follows: "1) Communicate every 2 Days 8.30-8.45 - Comm [communicate] if client not there. 2) No Change to Roster only Pam. 3) No outside normal hours work 4) Signed incorrect hrs! 5) Unrostered Contact with clients not to occur." These items summarised the future requirements of the Council in relation to the concerns raised. Mr Rabel then wrote some comments by way of elaboration on this document. After point 2, he wrote "No rescheduling without notifying Council". After point 3, he wrote "9 am to 6 pm". Mr McTaggart then said that, if Mr Rabel breached their requirements, "we'll seriously have to look at your employment". He said that, if there was no breach in the following twelve months, documents relating to the incident would be removed from Mr Rabel's employment file. Mr Rabel objected most strongly to this approach. He suggested that an informal counselling session was all that was required. Mr McTaggart said that the seriousness of the allegations made it appropriate for him to give Mr Rabel a final warning. He then reiterated that if there was a breach of any one of the five requirements "Unless there is very, very, very good reasons .... to why that's occurred .... we'll seriously look at your employment". Mr Rabel then asked Mr McTaggart to take into account some written responses which he had compiled to the three documents which he had been given at the first meeting. Mr McTaggart agreed and said he would advise Mr Rabel of his decision. 8 May 1996 - Mr Rabel's written response Mr Rabel's written response was very detailed. It reflected broadly the same answers given to Mr McTaggart and Mrs Hore during the second meeting. Some of the main strands of the written response were as follows. Mr Rabel said that the reason for the changed roster on 26 April was that Mrs Hore had imposed an unreasonable requirement by fixing a roster requiring six hours work on that day. The 3.20 pm finish time also jeopardised his attending to pick up his son punctually at 3.30 pm from school. In evidence before the Court, Mr Rabel acknowledged that the 3.20 pm finish would have left him with sufficient time to collect his son on time. But, more important, the response does not explain the failure to communicate with the Council. Mr Rabel's response to allegations of inaccurate timesheets was to say that the inaccuracy did not cause any client to pay more than was due. The inaccuracy was in the time when the work was done, not for how long it was done. The response to allegations of shortened visits generally was to set out the times actually worked, and thereby to demonstrate that the visits were not shortened. I say generally, because in the case of the apparent shortened visits between 9 am and 2 pm on 24 April 1996 to Khan, Cameron and Gray, Mr Rabel did not say that he provided the actual number of hours rostered to each of the clients and yet finished early, but stated: "The earlier completion on 24th April, 1996 could be attributable to various hypothetical scenarios including the fact that I may not have sat down for a cup of tea (and biscuits) with each client that particular day (allowing me to finish slightly ahead of 2.20 p.m.)." The response lacks frankness and suggests that Mr Rabel did not have an actual, as distinct from an hypothetical, explanation for the event. The failure to provide correct details of the hours worked was explained as an oversight. Mr Rabel then asserted that the first meeting and the handing over of the three documents at the end of that meeting was a form of harassment, that the Council had not given him a proper opportunity to respond, that the Council had delayed in making the allegations and that the Council had failed to follow its policy, which required three warnings before a final warning. He concluded with some personal attacks against Mrs Hore, alleging that she: "failed to use creativity and/or originality to solve the alleged problems [re: myself] without recourse to high level management. It appears she has not sufficiently utilised her interpersonal skills to gain my co-operation and assistance during the April period .... It is my personal view that many of her above allegations have been sloppy and unprofessionally compiled and delivered - the product of armchair investigation(s)." Mr Rabel attached 27 written statements from clients, which had been collected from 27 April to 7 May. Each of the statements was short and to the general effect that the client considered that Mr Rabel had done a good job in providing home care to the client. In three cases, the references were written by Mr Rabel, apparently at the request of the client who had difficulty in writing. There were statements from Mrs Godkin, Tyrrell, Haddy, Fox, Lennon, Atkinson and Way, who were the subject of concerns at the first meeting, but there were no statements from Mrs Daly, Mr Chatton or Mrs Zonnios, who were also subject of those concerns. 9 May 1996 - Complaint by Mr Lennon On 9 May 1996, Mr Lennon rang Mrs Hore and said that he was upset that he had signed a reference for Mr Rabel and was concerned that Mr Rabel had arrived at his house out of the blue on Saturday, 27 April 1998, and caught him unawares. He said that he did not want Mr Rabel back again to provide home care service. 10 May 1996 - Complaint by Mrs Zonnios On 10 May 1996, Mrs Hore received a phone call from Mrs Zonnios' daughter, who said that Mrs Zonnios was upset that Mr Rabel had come to Mrs Zonnios' house on Saturday night (probably 4 May 1996) while she had visitors and asked her to sign a statement concerning Mr Rabel's work. In evidence, Mr Rabel agreed that he had attended on that evening. He said that Mrs Zonnios had asked him to come back at another time. As a result, he returned on 7 May 1996. Mrs Zonnios refused to sign the statement on that day. Both these visits were outside rostered hours. 16 May 1996 - Warning letter By a letter dated 16 May 1996, Mr McTaggart wrote to Mr Rabel in the following terms: "I am writing further to our meeting on Monday 6th May 1996, and in particular, the concerns raised regarding the following items: · Communication with the office. · Changing rosters. · Working outside the rostered hours. · Timesheets. · Unrostered contact with clients. It concerns Council that the above issues have been raised and they are quite serious. I need to reiterate that the terms and conditions of your employment require you to work within the roster as and when required and to communicate with the Council should any changes to these conditions occur. Refusal to work within this criteria severely effects the Councils ability to deliver a quality client driven service. As such I have no alternative but to issue this final written warning to you. Further the following conditions are hereby set: · Telephone Council supervisor every 2nd Day between 8.30 and 8.45 · Communicate, to supervisor if client rostered has not answered door or appears immediately to not be home at the scheduled time. · Council only to reschedule rosters. · No client work to be carried out outside the rostered times. · Only hours actually worked to be recorded on timesheets. · No contact with clients after normal contact visits. Should any of the above conditions be breached, then your future employment will be eligible for termination. In the meantime if you require any further information do not hesitate to contact me on 9262 6342." Mr McTaggart gave evidence that he hand delivered the letter to Mr Rabel's house on 16 May 1996. He hand delivered the letter because it had been delayed by pressure of work and Mr McTaggart did not want to delay it further. He left it in the letterbox after finding that nobody answered the door. Mr McTaggart's evidence is consistent with part of an E-mail message sent by Mrs Hore to Mr McTaggart on 17 May 1996, which said "I did not ask Andrew [Rabel] if he had received your letter at this time". Mr Rabel said that he did not receive this letter on 16 May 1996 but he received it in the mail after the third meeting on 20 May 1996. In the end, I do not think that anything turns on the question whether Mr Rabel received this letter before the meeting on 20 May 1996 because Mr Rabel was made aware in very clear and definite terms and in writing at the second meeting of the requirements of the Council. He was also told that a breach of the requirements would place his employment in jeopardy. The letter was a reiteration of the outcome of the meeting, already known to Mr Rabel. 17 May 1996 - Phone call from Mrs Veltjens On 17 May 1996, Mrs Veltjens rang the Council and spoke to Mrs Smart. Mrs Veltjens was upset and crying over having signed a reference for Mr Rabel and over Mr Rabel pressuring her to change her rostered visit time against her wishes. These events occurred on 10 May 1996, that is, after the second meeting on 8 May 1996. Mrs Smart gave evidence as follows: "She [Mrs Veltjens] was quite concerned that she'd signed something and she was worried that that would be held against her, and she also wanted to know whether it was something the council had organised. It was a testimony for her home carer. She was very upset in the conversation. She was actually crying and was very worried that this would be held against her and it might stop her from having the service. .... he [Mr Rabel] asked her to ring the office to say that she wanted to change the days and times. She actually refused, and she was just wanting to let me know that she was quite concerned about the whole thing and she was very frightened as well". Ms Brunton had just returned from overseas. Mrs Smart reported the phone call to Ms Brunton. As a result, Ms Brunton called a meeting with Mr McTaggart and Mr Rabel for 20 May 1996. The position just prior to the final meeting After the second meeting, Mr Lennon and Mrs Zonnios' daughter had both phoned Mrs Hore reporting that Mr Rabel had visited home care clients seeking references on weekends and after rostered hours. The clients objected to and were upset by the approaches. These reports were made after the second meeting in respect of events which had occurred shortly before that meeting. The flashpoint which caused Ms Brunton to call the final meeting was the phone call from Mrs Veltjens complaining about Mr Rabel soliciting a reference from her on 10 May 1996. On its face, this incident appeared to be a breach of a requirement stipulated at the second meeting. 20 May 1996 - The final meeting On 20 May 1996, Mr Rabel met with Mr McTaggart and Ms Brunton. Again, the meeting was taped and a transcript of the tape was tendered in evidence before the Court. Mr Rabel was shown a letter dated 17 May 1996 from the Council to him. The letter was in the same terms as the warning letter dated 16 May 1996, referred to earlier, except that the erroneous reference to 6 May 1996 as the date of the second meeting was corrected to read 8 May 1996. Mr McTaggart said that the letter summarised the requirements set out at the second meeting. He said the reason for this meeting was to allow Ms Brunton, who had recently returned from holidays, to become involved, to talk about breaches of those requirements which had occurred after the second meeting and to hear any explanations. Ms Brunton explained that some clients had complained after the second meeting. She explained that the complaints highlighted the fact that the Council had a duty to protect the clients whose position was inherently vulnerable. Mr Rabel said the complaints were unjustified. The breaches were that Mr Rabel had pressured a client to get her to change the rostered appointment time when the client did not want to change the time, and also had solicited clients to sign statements about his work performance. Although at this point of the meeting it is open to read Ms Brunton as alleging that Mr Rabel obtained statements from two clients after 8 May, the course of the meeting as a whole made it clear that it was alleged that only one client had been approached after the second meeting. The second client complained after the second meeting about Mr Rabel attempting to obtain a statement before the second meeting. This incident was used in the meeting to illustrate to Mr Rabel the seriousness of the later conduct in that such conduct, by its nature, was likely to disturb home care clients. Mr McTaggart and Ms Brunton both explained to Mr Rabel that they had a responsibility to the clients to prevent such conduct. They also explained that they had a duty to Mr Rabel because his conduct suggested that he needed some counselling about his conduct. They offered to provide such counselling from an independent agency. Mr Rabel raised three issues in the course of the meeting. First, he asked for the names of the clients who had supplied the information about the alleged breaches of conditions. Mr McTaggart and Ms Brunton refused to provide the names of the clients because they saw a need to protect the clients from further pressure and to protect their privacy. They did, however, provide Mr Rabel with the substance of the complaints made against him. Mr Rabel also complained that the conditions he had to observe had not been set out in a letter after the second meeting. Mr McTaggart responded by saying that the conditions established on 8 May 1996 had been clear and the letter of 17 May 1996 merely reiterated what had been stipulated at that meeting. It is significant that Mr Rabel did not complain at this meeting that he did not know what requirements came out of the second meeting. His complaint was a procedural complaint, namely, that he had not received a letter setting out the requirements. I have no doubt that Mr Rabel knew, after the second meeting, that he was not to approach clients to change rosters or solicit references. I do not accept his evidence to the contrary. Nor is it any answer to the Council's complaint that Mr Rabel obtained a reference from Mrs Veltjens on 10 May 1996 that Mr McTaggart had not advised Mr Rabel of his response to the written material provided to Mr McTaggart by Mr Rabel on 8 May 1996 at the end of the second meeting. Again, I find that Mr Rabel knew that Mr McTaggart's decision to require Mr Rabel not to obtain references from clients would not be changed by the responses. The responses traversed much the same ground as Mr Rabel's oral responses during the second meeting. Mr McTaggart had rightly replied that the responses did not provide reasonable explanations for Mr Rabel's conduct. There was no reason for Mr Rabel to think that the written responses would have any different effect. Finally, Mr Rabel complained that the Council's approach was excessive, harsh and procedurally incorrect. Mr McTaggart and Ms Brunton replied that, in the light of the seriousness of the allegations which had been raised, they thought the approach had been lenient because Mr Rabel had been given further chances to explain and alter his conduct. Mr McTaggart and Ms Brunton indicated that the breaches of conditions left them no alternative but to dismiss Mr Rabel. The arrangements for his departure were then discussed and Mr Rabel was told that he was not to return to any of the home care clients. In his evidence, Mr Rabel admitted that he obtained a reference from Mrs Veltjens on 10 May 1996. In my view, Mr Rabel knew that Mr McTaggart and Ms Brunton were referring to Mrs Veltjens when they alleged that he had solicited a reference from a client between the second and the third meeting. Mrs Veltjens was the only person from whom Mr Rabel obtained a reference in that period. He gave evidence that he did not identify the incident as involving Mrs Veltjens because Ms Brunton described the incident as having engendered fear in the client while Mrs Veltjens had not been fearful when he obtained the reference from her. I do not accept this evidence. Given the serious tenor of the warning provided on 8 May 1996 and the fact that the only reference Mr Rabel obtained thereafter was from Mrs Veltjens, it must have been apparent to Mr Rabel that Ms Brunton was referring to Mrs Veltjens. Mr Rabel said that Mrs Veltjens had promised, on an earlier occasion, to provide him with such a statement. When asked why this request was not a breach of the requirements set out on 8 May 1996, Mr Rabel replied "The issue was not to do it during unrostered contact". The reference was obtained on 10 May 1996, during a rostered home care visit. This response is contrived because it requires a reading of the requirement not to have unrostered contact with clients out of the context of the second meeting. One of the reasons for the requirement was that Mr Rabel obtained a reference from Mrs Way. She was upset about the approach because she could not remember what she had signed. That contact was outside rostered hours. But the issues of obtaining references and visiting outside rostered hours were intertwined. The clear message from the second meeting was that Mr Rabel was to attend at rostered times to do rostered work only. Mr Rabel recognised this at the meeting on 8 May 1996, when he said: ".... well what I'm saying is I'm not sure whether the Council has the right any legal right or whatever .... to require what you're requiring of me .... not to contact the client after hours or during the hours .... because I was on my own business trying to collect documents to answer these allegations ...." Mr McTaggart explained: "But do you really think .... that puts you in a vulnerable position if anything happens and you have to recognise that it puts concerns and issues in the mind of the people that you are visiting .... it puts them .... it makes them uneasy .... it really has an impact .... and Pam and the business could wear the ramifications of that .... one of the ladies has rung up in an absolute ... um .... mess .... wanting to know what she'd signed .... and we didn't know about what she was signing .... what was she signing?" The Council was concerned that obtaining references from these elderly, sick people was upsetting them. Having observed Mr Rabel give his evidence and conduct his case, I have no doubt that he was well aware that he was required not to approach clients for further references after 8 May 1996. In my view, he objected to the criticisms of his conduct made by the Council at the first and second meetings. He acted in defiance of its requirements. This was not a rational approach designed to preserve his employment. In almost all instances, Mr Rabel did not have any reasonable explanation for his admitted conduct. Despite this, the Council gave him a further chance after the second meeting but Mr Rabel seems to have lost sight of the need to secure his job and to have been overtaken by a need to challenge and confront the Council for the sake of the exercise. This approach continued throughout his conduct of the present proceedings. As a result, I found his evidence of explanations for his conduct, when explanations were given at all, unconvincing. Conclusion Valid reason - s 170DE(1) The proper administration and conduct of the Council home care service required that roster changes were dealt with through the Council office and not between client and individual carer. Mr Rabel knew this. In a series of incidents, referred to in these reasons, Mr Rabel changed roster times directly with clients (Tyrrell, Haddy, Fox, Chatton, Zonnios, Lennon, Atkinson, Way). These incidents occurred on a number of occasions throughout April 1996. In most instances, Mr Rabel had no explanation for his conduct. The only reasonable conclusion is that he arranged his work hours to please himself. Some attempted explanations were simply not responsive to the complaints. Thus, Mr Rabel sought to argue that the clients did not object to the roster changes. But the issue was whether he was entitled to rearrange the rosters without contacting the Council. Other explanations were false. An example was Mr Rabel's claim that a 3.20 pm roster finish on 26 April 1996 left him with inadequate time to collect his son from school. Again, it was an obvious administrative necessity that timesheets were completed accurately. Mr Rabel knew this. Mr Rabel did not dispute that a number of timesheets did not record the actual times worked (Tyrrell, Haddy, Fox, Chatton, Lennon, Atkinson and Way). In a few instances, he said that he had told Mrs Hore of the changed times by phone on the day of the change. But she could not be expected to record this information for pay and billing purposes. That was the function of the timesheets. In other instances, he said that the accuracy did not matter because the number of hours worked was the same as the number of hours recorded, albeit at different times and even days. This again does not respond to the complaint. The timesheet was necessary to show not only how many hours were worked but when they were worked. In the case of Mr Chatton, the inaccurate timesheet asserted a claim for payment for more hours than Mr Rabel worked. Further, the allegation made by Mrs Hore that Mr Rabel had worked shortened hours was a direct result of his inadequate record keeping. She had to reconstruct his working times on incomplete information. This led to considerable administrative inconvenience in the need to work through the inaccurate timesheets at the second meeting. By that time, the Council had to accept Mr Rabel's word for the times worked without the normal procedure of verification by the client's signature on the timesheet at the time the work was done. After initially disputing the issue, Mr Rabel accepted that, in accordance with the emergency procedure, he should have advised the Council when Mrs Barnett failed to answer her door at a rostered appointment time. Prior to 8 May 1996, Mr Rabel obtained signed references from 27 clients. When told by the Council not to trouble the elderly, frail and disabled clients any further with such requests, he persisted to obtain a reference from Mrs Veltjens on 10 May 1996. He then sought to justify this action on a contrived basis. In these actions, Mr Rabel demonstrated that he was not able to conduct himself as a home carer was required to do. He seemed determined to run his own race and ignore the conditions of his employment. These conditions were reasonable and necessary for the home care service to operate. In my view, the Council had valid reasons connected with Mr Rabel's conduct to terminate Mr Rabel's employment and there was no contravention of s 170DE(1). Opportunity to defend himself - s 170DC On 2 May 1996, Mr Rabel was given comprehensive written statements detailing the events which gave rise to the Council's concerns. The date of the second meeting was fixed for 6 May 1996 and extended at Mr Rabel's request. On 8 May 1996, he was given, and used, a full opportunity to discuss the concerns set out in the documents provided on 2 May 1996. At the end of the meeting, he handed Mr McTaggart detailed written responses to the concerns. On 20 May 1996, Mr McTaggart and Ms Brunton were still open to an explanation for the conduct apparently in breach of the conditions set at the second meeting. In my view, the decision not to disclose Mrs Veltjens' name was justified out of concern for the client. It did not deny Mr Rabel an opportunity to defend himself because, as I have found, Mr Rabel knew that the circumstances related to her. In all the circumstances, Mr Rabel was given a generous opportunity to defend himself against the allegations and there was no contravention of s 170DC. The application is dismissed. As the Council reserved its right to argue the question of costs, I will reserve the question of costs to a date to be fixed. I certify that this and the preceding twenty-four (24) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice North Associate: Dated: 16 June 1998 The applicant appeared in person. Solicitor for the Respondent: Gary Katz & Associates Dates of Hearing: 8-11 July, 7-9, 16-17 October, 25 November 1997 Date of last submission in writing: 24 December 1997 Date of Judgment: 16 June 1998